The two questions that almost every client ask are “how long will the case last?” and, if the case is not contingent, “what will it cost?” Those two questions are difficult to answer because the opposing lawyer and the opposing party are such big factors.

In every case, we try and let the other side know that we intend to work with them to exchange sufficient information so the parties can fairly evaluate the case, that we’ll make good faith efforts to settle, and failing that, we’ll do our best to give both sides a fair opportunity to present the merits of the claim. If both sides can agree to this principle, then it’s our experience that most cases can be resolved both economically and fairly. And working in Austin, which still has a fairly small town feel to the civil litigation bar, we know most of the lawyers and can work towards those ends.

However, if the other side doesn’t agree, and it plays loose with the rules, hides information, and makes little attempt to work out even the most basic disputes, then costs of litigation increase substantially.

A recent case in Florida provides one example of how the opposing party’s flaunting of the rules can affect the costs. The case, a $10 billion trade secrets case against Motorola, had waged on for several years. The case finally went to trial last fall, and the case was tried to a jury for almost two months. During the trial, the judge entered a standard order that no witnesses should read transcripts of other witnesses’ testimony (you don’t want witnesses to mold their story depending on what others have already said). Unfortunately, two of Motorola’s witnesses were caught having read testimony of prior witnesses, and the judge was forced to declare a mistrial. The parties are currently in the throes of a hearing to determine what sanctions and attorneys’ fees should be awarded to the plaintiff for Motorola’s violations of the court’s orders. And the stakes are high. The plaintiff is arguing that the conduct has poisoned the entire case, and it is asking for almost $200 million in sanctions and attorneys’ fees (including an unheard of and almost absurd $11,000.00 per hour rate for one attorney). For more on the story, click here. (Thanks to our friend Stephanie Mencimer of the The Tortellini blog for the link. We’ve also previously written on fraudulent defenses here.)

Fortunately, it is rare to find such a blatant flaunting of the rules. On the other hand, it’s the routine obstinance and refusal to cooperate that drives up the costs and time of litigation, but is not severe enough to be sanctioned by the court.